74 Migrant rights: where do they fit into a “human rights-based approach”?

I’ve come across this authoritative statement on the “human rights-based approach”:

“The human rights based approach:

Is based on the international framework of human rights law as provided in the international bill of rights and the core human rights instruments

Establishes accountability between duty-bearers and rights-holders

Focuses on vulnerability, marginalisation and exclusion

Emphasises participation and empowerment

A human rights-based approach emphasises that human rights are interdependent and inalienable, and that there is no hierarchy between different sets of rights.”[1]

There are several issues worth pondering here. I’m looking at this statement specifically in the light of “migrant rights”, for this angle raises interesting moral and legal questions.

The “human rights-based approach” aspires to universality. Therefore it does not take overt cognizance of citizenship or state territory. This waving of the “universal” wand creates problems in the area of migration, which specifically deals with crossing of state borders.

The state exists and is the centre of responsibilities towards its citizens – it reflects a “compact” between them for their mutual welfare. Any “compact” creates exclusion: those not party to it, be it by distance or choice. As “servant of the citizens” the state does not recognize the excluded. On behalf of the “compact” the state may set conditions to temporary, permanent entry, or even acculturation and citizenship.

On the other hand the international framework of human rights law engages states to treat equally… whom for a fact? All its citizens? All people within its territory (irrespective of citizenship, or form of residence)? Or all humans? “Conditions of entry” characterising the sovereign state necessarily conflict with the aspirations of “human rights-based framework”.

Does the “human rights-based approach” imply an open-ended engagement of the state (which has subscribed to it) to treat every human in non-discriminative fashion irrespective of citizenship? Does the approach override or trump the responsibility of the state to its own citizens? For – if the state is entitled to give special (and preferential) treatment to its own citizens, it may set conditions for entry of migrants. If this is not the case, then the state may not set conditions whatever for people moving temporarily or even permanently across its borders. In fact, it may not even limit entry or subject it to a lottery procedure, for it would be a form of exclusion and hence discrimination. The state is degraded from the sovereign locus of “social contract” to the level of administrative structure dealing with mankind that happens to be in its administered area.

At this level of generality the question is not whether the state is allowed to set degrading conditions for entry (and therefore grossly violate the intention of the “human rights-based approach”) but whether the state is allowed to do so at all. Put it succinctly, is the state obligated to give “national treatment” to all and sundry?

My contention would be that the state is not committed by virtue of it subscribing to the “human rights-based framework” to open-ended and universal national treatment, and consequently is entitled to set entry conditions for migrants. Needless to say, the conditions may have to meet “minimum standards”, but may be tweaked within a comfortable range of possibilities to favour state citizens.

There is a tension here between two sets of obligations, and a pragmatic and evolving compromise needs to be found. Constitutional state obligations to its citizens are irreversible, while participation in the international framework of human rights law is reversible. This facts hints to a ranking of obligations, with state obligations to its citizens coming first. Political realism would dictate this stance as well – but it is comforting to know that it might have some merit as it is expedient.

[1] Office of the High Commissioner for Human Rights (OHCHR) 2011, p.2